final exam Flashcards
purposes of administrative agencies
congress creates statutes or acts in response to a need.
statute first THEN agency
1) specialization : collect expertise of many
2) legislative gap filling : fill in details of statutes through rules / regulations
executive agency
president has greater control of it
- housed within one of the exec. departments.
- headed by single officer who can be removed by pres. with or without cause
OSHA, IRS, FDA
independent agency
greater independence from exec. controls
- headed by several ind. from both political parties, serve staggered terms
- can only be removed by pres. for wrongdoings
SEC, FTC, SBA
legislative power of ad. agency
have the force and effect of al aw like a statue.
create the law
executive power of ad. agency
enforcing the laws they create by
- info gathering
- licensing
- product recalls
- fines
judicial power of ad. agency
court like function
- must go before court, push out, cease and desist orders
what are the legislative limits to agency power
enabling acts budget allocation ( agency funding) freedom of info act FOIA
what are the executive limits to agency power
appointment and removal of agency heads
- executive orders
- control over DOJ enforcement litigation
federal registrar
daily government publication
- any changes of any rules in any ad. agency / or new rule is in the federal register
TRANSPARENCY
judicial limits to agency power
judicial review of agency action / inaction
constitutional limits to agency power
speech ( agencies can reg. indecent speech)
search (search of premises / inspection)
self incrimination ( cannot prevent disclosure of docs)
jury trail (judicial review is available!)
securities act of 1933
covers purchase and sale of securities in the U.S.
- assure that investors receive accurate / complete info about publicly traded companies
- minimize likelihood of fraud when a company puts securities for sale to public
what is a prospectus
- must be filed when company goes public
selling document for potential investors - includes mission , business operations, financial info (statements) MGMT team , risks and benefits
securities exchange act of 1934
- created the SEC
- requires companies to report info about operations, financials, mgmt practices on periodic basis
- full disclosure and transparency, info sent to SEC
- assure all investors have access to info in consistent / understandable format
section 10b-5 of SEA 1934
unlawful for person indirectly or directly to
1_ employ any device, scheme, artifice to defraud
2) make untrue staetemnt of material fact, or to leave material fact out
3) engage in any fraudulent act relating to purchase or sale of any security
insider trading
when material nonpublic info is used by an “insider” in the trading of a company’s stock
inside info
any info about a company’s strategic / financial plans or current operations that is not available to public
ex. mergers, acquisitions, R & D
civil penalties for insider trading
- any profit made or loss avoided from the info REMOVED
- fined up to 3 times amount of profit earned or loss avoided
- restrictions on types of activities violators can engage in
criminal penalties for insider trading
up to 20 years in prison
fine of up to $5 for each violate of the SEA of 1934
define employment at will
employees have the option of quitting their employment at any time for any reason
- unless contract or union contract
3 exceptions to employment at will
PIC
public policy exception
implied contract exception
covenant of good faith and fair dealing
public policy exception to employment at will
employers cannot fire employee for a “bad reason”
- whistle-blower protection (external reporting > internal reporting)
- cannot be fired because you refused to perform illegal act
- cannot be fired for exercising a right / privilege (ex. firing workers comp claim)
implied contract exception to employment at will
limits employer’s right to fire the employee even though there is no express contract
covenant of good faith and fair dealing exception to employment at will
termination must be based on just cause, NOT on malice or ill will
only recognized in a handful of states
two ways employers monitor employees
1 - drug testing
2- electronic monitoring
why do employers do electronic monitoring
- protection from legal liability
- track employee job performance
- ensure confidential docs and trade secrets not transmitted
drug testing : monitoring employees
public employees protected from being drug tested randomly
private employees are not protected
title 7 of CIVIL RIGHTS ACT prohibits employment discrimination on the basis of :
RRCNG race religion color national origin gender
- INTENTIONAL AND UNINTENTIONAL
requirement for employer to be covered by title 7
- employer have 15+ employees
- state and local gov. agencies 15+
- federal gov. agencies automatically covered
procedure for title 7
1) employee files claim with EEOC
2) EEOC gathers info, encourages parties to mediate
3) either brings claim against employer or issues notice of right to sue
intentional / disparate treatment discirmination
prohibited by title 7
- when employer intentionally discriminates against employees who are members of protected classes
unintentional /d disparate impact discrimination
prohibited by title 7 - employer's practice, such as hiring only persons with certain level of education, has the effect of discriminating against class of ppl protected
discrimination based on religion
employer must reasonably accommodate religious practices of employees UNLESS to do so would cause undue hardship to their business
discrimination based on gender
employers cannot classify jobs as male or feamel
- cannot advertise in help wanted columns designated male / female
UNLESS employer can prove gender of applicant is essential to job
plaintiff must show gender was determining factor in hiring, firing, lack of promotion
two forms of sexual harassment
1) quid pro quo
2) hostile environment - e
quid pro quo
demand for sexual favors by supervisors from a subordinate in exchange for benefit
- must be TANGIBLE employment action
- employer strictly liable
hostile environment
employee is subjected to sexual comments, jokes, physical contact what is offensive.
interferes ability of employee to do their job
- employer MAY be liable only fi it knew or should have known and failed to act
- TANGIBLE ACTION must have been taken against the employee
liability when it comes to harassment by coworkers / non employees
employer liable ONLY if they knew or should have known and failed to take action
- can also be liable for harassment by non employees
remedies for discrimination
reinstatement back pay retroactive promotions attorney fees wage adjustments
ADEA
prohibits employment discrimination on the basis of age against ind. 40 or older
- covers employers with 20+ employees
four things a plaintiff has to establish for ADEA
1- was a member of protected age group
2 - was qualified for position they were discharged from
3 - was discharged under circumstances that give rise to discrimination
ADA definition
prohibits employment discrimination against people w disabilities who are otherwise qualified
elements needed to prevail on a claim under the ADA
1 - show he /she has disability
2 - is otherwise qualified
3 - excluded from employment SOLELY because of disability
first exhaust administrative relief with EEOC
disability definition
physical or mental impairment taht substantially limits one or more major life activities
correctable conditions : not necessarily disabilities
cancer and aids
disability
defenses to employee discrimination
employers assert that dsicrimination was required :
- after acquired evidence ** not complete defense but MAY limit remedies**
- to meet a bona fide occupational qualification
- to maintain a legit seniority system
bona fide occupational qualification
defense to employee discrimination
- qualification must be “reasonably necessary to the normal operation of that particular business or enterprise”
seniority or merit system
permissble as long as purpose is not to discriminate
define tort
civil, legal injury to a person or property caused by a breach of a legal durty.
negligence (tort)
unintentional tort.
when someone suffers injury bc of defendant’s failure to company with a legal duty.
defendant creates foreseeable risk of injury.
NO INTENT REQUIRED!
4 elements : duty, breach of duty, causation, damages or injurt
causation
element of negligence
1) actual cause (but for cause)
2) proximate cause (defendant has a duty to protect against foreseeable injury)
duty
element of negligence
- person has legal duty to another
- standard of care principle
- duty requires action that is reasnoable under the circumstances
breach of duty
element of negligence
- conduct falls below standard of care
injury
element of negligence
prove injury was result of defendant’s conduct
LEGALLY recognizable injury
defenses to negligence
contributory negligence : plaintiff is negligent
comparative negligence : plaintiff recovers in proportion of his loss attributable to his negligence
assumption of risk : knew risk was present and understood the risk. voluntarily incurred it
requirements for intentional torts
prove VIIC :
voluntary act
intent
injury or harm
causation
damages for business torts
nominal damages (monetary award)
compensatory damages (make party whole, pay money equal to amount of damage caused)
punitive damages (exemplary damages for outrageous misconduct). PUNISH
definition / purpose of product liability
lawsuit brought by a party who has suffered an injury or experienced property damage caused by a defective product
negligent product liability
injured party establish manu., seller ANYONE in chain of distribution breached duty of care
duty is owed to any foreseeable party who might have connection with product
EVEN SECOND HAND USERS AND BYSTANDERS
what does duty of care involve in product liability
duty to design safe product
duty to manu. product properly
label product correctly
strict product liability
DOES NOT require prove that party breached duty of care.
manu. is in a better position than customer to know about product.
6 REQUIREMENTS FOR STRICT LIABILITY!
DDDIDG
1 - defendant sold product in defective condition
2 - defendant normally engaged in business of selling the product
3 - defect is unreasonably dangerous
4 - injury to person or property
5 - defect was proximate cause of injury
6 - goods have not substantially changed since product was sold to time injury was sustained
two types of warranties
express : manu / seller makes explicit claim about quality , safety, function of product
implied: goods will function the way buyer expects it to perform
fitness for a particular purpose
defenses to product liability claims
injured party or 3rd party altered product out of the manu. control
victim used product in manner unforeseeable
manu. ASSERTS they used best available tech and product to design and manu. product
negligence claim : contributory, comparative, assumption of risk
foreign sovereign immunites act
courts in one country will refrain from lawsuits against certain foreign governments. NOT individuals
define comity
nations will recognize and defer to the legislate, exec, or judicial acts (including court decisions) of other countries
AS LONG as laws are consistent with each nation
sources of international law
CIGJ customary international law international treaties and conventions general principles of law judicial decisions / scholarly teachings by experts
define treaty
international agreement concluded between states in written form, governed by international law.
embodied in a single instrument or in two or more related instruments
best and worst ways to resolving international business disputes
best : arbitration
worst : litigation (Court)
CONTRACT IS THE #1 WAY!
define dumpping
products of one country are introduced into commerce of another country at less than normal value of the product (normal value is price at home market)
quotas
gov imposed restrictions on number or value of goods that can be imported
EPA
enviornmental protection agency
deals with all enviornmental issues
clean air act : enabling act
policy that deals with air polution
clean air act of 1970
enforced by fed. gov., partnership with state and local gov
emissions standards : mobile sources and non road engines
polices for water pollution
clean water act
safe drinking water act
clean dumping act
policy for toxic substances
toxic controlled substances act
- guidelines for EPA which substances may safely be used in many.
policy for dumping hazardous waste
resource conservation and recovery act
CERCLA / superfund
EPA can force responsible parties to clean up hazardous waste or pay costs of clean up
people who can be picked liable as part of CERCLA by the EPA
1 - current owner / operator of contamination site
2 - owner or operator at time of waste disposal
3 - anyone who arranged for disposal of hazardous substance on the site
4 - anyone who transports hazardous substance or contaminant to a site
OR ALL OF THEM!
